Mental Capacity and the Decisions made by The Court of Protection

Oct 6, 2020

When a person loses their mental capacity, their families – already facing difficulties following the loss of capacity itself – are often presented with a sudden need to make decisions on their loved one’s behalf. Once straightforward decisions which would be made by the individual can then become the subject of conflicting opinion between family members and third-party professionals.

The Court of Protection was set up for the purpose of making necessary decisions on behalf of individuals who do not have capacity. It was established by the Mental Capacity Act 2015 and was set up in 2017 to deal with the property and affairs of those who lack sufficient capacity. The individuals the Court makes decisions for are known in proceedings as “P”. The identity of P is always kept confidential from the public and the court proceedings themselves are always held in private.


There are two scenarios where the Court of Protection generally steps in to make decisions for P:-

  • Scenario 1: where P has lost mental capacity and there is no existing Lasting Power of Attorney (LPA) in place that will be triggered at that point, so P had not given legal authority for another person to make decisions for him.While an individual still has capacity to deal with their own affairs, they can appoint an Attorney under a Lasting Power of Attorney (LPA). Their Attorney is then appointed to make decisions in the future event of capacity being lost. There are two types of LPA: one granting power to another to deal with a person’s Finances and another giving power to deal with a person’s Health and Welfare.You must be an appointed Attorney of P to make decisions on his or her behalf. You cannot just decide to deal with the affairs of a loved one simply because they can no longer make decisions for themselves.
  • Scenario 2: where there is a dispute or problem with carrying out responsibilities under an existing Lasting Power of Attorney and it requires the Court of Protection to act; either to replace the appointed Attorney or to deal with a specific problem that the Attorney is not confident he can properly make a decision overThe Court of Protection does not usually get involved where an Attorney is appointed unless there are concerns that the appointed Attorney is not dealing with finances sensibly or a health and welfare issue arises and the Attorney and P’s family members are uncertain as to how to deal with it.

How the Court acts in both Scenarios

Before it can act, the Court of Protection must first establish that P does in fact lack capacity. The Mental Capacity Act 2005 sets out the principles which must be considered before confirming that a person lacks capacity. Those principles are that:

  • P is always assumed to have capacity unless it is established that they lack capacity;
  • P must not be treated as unable to make a decision unless all practicable steps to help them to are taken without success; and
  • P must not be treated as unable to make decisions simply because decisions they have made are unwise

The Court of Protection can only act when it is satisfied that the principles apply so that P does lack capacity.

When the Court can confirm P does not have capacity, the Court must then only make decisions on P’s behalf which are in his or her best interests. This includes first needing to consider whether the act or decision can be achieved in a less restrictive way than via the Courts.

Acting in P’s best interests

The Court of Protection makes decisions on all aspects of a P’s financial and personal affairs. Those decisions can sometimes include very sensitive life or death scenarios, which must be carefully considered by the Court based on both expert opinion and P’s own evidence. It is paramount in these cases that the Court keeps P’s best interests at the forefront of its final decision. This is especially important where P’s family members, in particular, will have incredibly emotive viewpoints on what the Court’s decisions should be.

Examples of the decisions the Court of Protection is required to make are available in several recent decisions:

In the carefully considered judgment in Northamptonshire Healthcare NHS Foundation Trust v AB [2002] EWCOP 40 the Court of Protection ruled that although a patient with an eating disorder would likely face death if she did not gain weight, it would not be in her best interests to continue to force feed her.

Similarly, in another equally sensitive decision on force feeding, in Avon and Wiltshire Mental Health Partnership v WA & Anor [2020] EWCOP 37, the Court of Protection also ruled that any treatment (to feed P where he had refused food or drink in protest to his asylum application) should only be undertaken with P’s consent. Although P’s refusal to eat could lead to his death, loss of capacity did not override respect for personal autonomy, and force feeing P was not in his best interests.

It is therefore clear that the Court of Protection must navigate very personally difficult and sensitive circumstances while always making its decisions in the best interest of P – not his family members or professional advisors who might seek to persuade the Court otherwise.

A loss of capacity is always challenging for an individual and their family members. We are here to advise both individuals who may lose capacity or their appointed Attorneys on how decisions can be made for them and we seek to reassure our clients that those decisions will always be made on P’s behalf in his own best interests.

Application to the Court of Protection

We understand that approaching the Court for decisions on lost capacity is difficult.

If you are affected by your own or a loved one’s loss of capacity we can assist in making an Application to the Court of Appeal on decisions relating to their financial and personal affairs. We will advise you fully and sensitively of every option available to you. Please contact our Dispute Resolution team for further advice on 01276 686 222 or at drteam@herrington-carmichael.com.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter. 

Annabelle Randell

Annabelle Randell

Solicitor, Disputes and Claims

Solicitor, Disputes and Claims

t: 01276 854 902
e: annabelle.randell@herrington-carmichael.com

Contact us

    The information you submit will be handled in accordance with our privacy policy.

    Latest Insights - sign up to our Emailers

    Our Emailers will bring you the latest news and insights from our legal teams as we look at the key talking points in life and in law.

    Our insights will include articles, podcast discussion and information about our events and services.

    You can sign up to as many as you wish and you can opt out at any time.

    Sign up to our Emailers

    Please see our privacy policy regarding use of your data.

    Latest Articles

    Top Legal Insights


    Contract Law

    Material Breach of Contract

    What is a ‘material’ breach of contract by a party to a commercial contract? This is a critical issue regularly considered by the courts. What constitutes a material breach and what are the remedies?

    Property Law

    Commercial Lease: The Financial impact on Landlord and Tenant

    Coronavirus (COVID-19) and the restrictions now in place to control its spread, are having a significant effect on many business sectors.

    Divorce and Family Law

    Divorce in Lockdown: Can I get some discreet legal advice?

    We have spoken to clients who are unfortunately experiencing some family issues, and would like to obtain expert legal advice, yet don’t know how...

    Land & Property Dispute

    Restrictive Covenants – The Price of Modification

    Having identified that your land is burdened by a restrictive covenant and for the purposes of this article the covenant in question will be that only one residential building can be erected on the land. What do you do next?

    Wills, Trusts and Probate

    Why is having a will so important?

    It is entirely up to you if and when you want to create a Will, but it is important to be aware of the consequences of not having a Will.

    Award winning legal advice

    We are solicitors in Camberley, Wokingham and London. In 2019, Herrington Carmichael won ‘Property Law Firm of the Year’ at the Thames Valley Business Magazines Property Awards, ‘Best Medium Sized Business’ at the Surrey Heath Business Awards and we were named IR Global’s ‘Member of the Year’. We are ranked as a Leading Firm 2023 by Legal 500 and Alistair McArthur is ranked in Chambers 2022.


    60 St Martins Lane, Covent Garden, London WC2N 4JS 

    +44 (0) 203 755 0557



    Building 2  Watchmoor Park, Riverside Way, Camberley, Surrey  GU15 3YL

    +44 (0)1276 686 222


    Wokingham (Appointment only)

    4 The Courtyard, Denmark Street, Wokingham, Berkshire RG40 2AZ

    +44 (0)118 977 4045


    © 2020 Herrington Carmichael LLP. Registered in England and Wales company number OC322293.

    Herrington Carmichael LLP is authorised and regulated by the Solicitors Regulation Authority.

    Privacy   |   Legal Notices, T&Cs, Complaints Resolution   |   Cookies   |   Client Feedback